The Chair set out the schedule for the meeting. The Chair also welcomed a new Committee
member, Judge Georgia Dawson, of the East Central Judicial District. The Committee
discussed scheduling of the September meeting.

Staff explained the Committee had asked for research on whether Rule 21 and 22 and the
proposed amendments to these rules conflicted with any statutes. Staff discussed the
research performed and concluded that the proposed amendments did not conflict with any
statutes.

The rules were approved by the Committee and added to the Criminal Rules Package at the
January meeting. No member of the Committee made any suggestions for further changes
to the rules, so they will be sent to the Supreme Court with the rest of the Criminal Rules
Package.

Staff explained the proposed amendments to the rule. Mr. Mack MOVED to approve the
amendments. Judge Dawson seconded.

A member said that on occasion probationers can be involved with proceedings in a number
of different counties, and that unifying the proceedings in one county can save time and
money.

A member said there is a big difference between a case that is pending and subject to
transfer under Rule 20 and one where a sentencing judge has been involved and where a
disposition was made. The member said the judge who made the disposition has a
responsibility to monitor compliance with the probation order. The member said that the
judge who made the disposition knows what happened at the sentencing hearing, including
the concerns of victims involved, and has ownership in the sentence.

Judge Geiger MOVED to amend the rule to add language at the end of line 138, "but only
with the consent of the sentencing judge." Judge Foughty seconded.

A member said the proposed language was ambiguous concerning the identity of "the
sentencing judge." The member said the reference should instead be made to "the judge
initially imposing sentence." Without objection, the change was made to the motion.

A member asked what would happen in a case where the original judge was unavailable.
The member suggested the motion language be changed to allow an original

-4-

judge to block a proceeding by objection, but not to require consent of the original judge.

A member said typically if the original judge was not available, the judge currently
chambered in the location would assume the responsibility to deal with probation revocation.
A member said requiring consent was important because otherwise there would be no way
to confirm that information about the revocation was received by the judge.

A member suggested that "judge" be changed to "court" in the motion so the person with
the office, rather than a specific person, would be have the role of consenting to the
proceeding. A member pointed out that previous language in the rule referred to "court"
instead of "judge." A member said that, by statute, revocations had to come back to the
judge who imposed sentence.

A member proposed that the amendment language be put in a separate sentence: "This
procedure is available only upon the consent of the judge initially imposing sentence." The
amendment was changed by unanimous consent.

A member asked what would happen if the judge initially imposing sentence was retired.
The member suggested that getting consent of the judge currently assigned to the case was
what was needed. A member said using "court" would be consistent with the other language
in the rule. The member suggested that "the court that originally placed the probationer on
probation" be used instead of "the judge initially imposing sentence."

Judge Dawson MOVED to amend the amendment to substitute "the court that originally
placed the probationer on probation" for "the judge initially imposing sentence." Judge
Geiger seconded.

A member said the word "originally" could be eliminated from the proposal. Without
objection, the motion to substitute was revised.

A member said the procedure seemed cumbersome because of the number of people who
would now have to consent to a change of location for a probation revocation. A member
responded that no excessive procedure would likely be necessary in a normal case since a
change of location would not be attempted without obtaining prior consent from the parties.

The motion to substitute CARRIED unanimously.

A member said that perhaps some language requiring the original state's attorney to consent
might be needed. The member said that the court would likely consult with the

-5-

prosecution before allowing a transfer.

The motion to amend the proposal CARRIED unanimously.

The main motion to add the rule, as amended, to the Criminal Rules Package CARRIED
unanimously.

Staff explained the proposed amendments to the rule. Judge Hagerty MOVED to approve
the amendments. Judge Geiger seconded.

Without objection, the word "be" was added to line 14.

A member suggested that the "or" in line 33 be changed to "and." The member said that
the sentence referred to two different parties and the actions of both parties, not one or the
other, might be allowed to take.

Judge Dawson MOVED to substitute the word "and" for "or" in line 33. Mr Kapsner
seconded.

A member said that the "may" in the beginning of the sentence gives the judges the
discretion to perform the acts listed in the sentence, so the use of "and" is appropriate. A
member suggested that the word "may" be added after the proposed "and" to make clear that
the judge does not have permit reply affidavits when the judge chooses to extend affidavit
filing periods.

Without objection, the motion was amended to include the word "may" after "and."

The main motion to approve the amendments and add the rule to the Criminal Rules
Package CARRIED 14-1.

Staff explained the proposed amendments to the rule. Judge Simonson MOVED to approve
the amendments. Judge Foughty seconded.

A member asked whether the state could authorize a federal magistrate to do anything. The
member suggested a federal magistrate's authority was limited to that authority granted

-6-

by Congress. The member agreed that the provision allowing a federal magistrate to issue
a state search warrant had been in the rule for a long time, but the member wondered whether
the provision had a legal basis.

A member responded that federal magistrates could issue federal search warrants and the
evidence seized can be used in a state prosecution. Another member suggested that there
might be circumstances where state officers could not locate a state judge and allowing a
federal magistrate to grant a warrant. Staff pointed out that the language was a reciprocal
of the federal rule.

Judge Geiger MOVED to strike the third "warrant" in line 92 and replace with "supporting
affidavit." Mr. Kapsner seconded.

A member said that there might be sworn testimony instead of an affidavit. A member
responded that the language was part of the rule on warrants by facsimile, so there would be
an affidavit, and it would be the affidavit being sworn to, not the warrant.

Motion CARRIED unanimously.

A member suggested that references to "facsimile" in the rule be replaced with "electronic
transmission." The member said judges were more likely to have e-mail in their homes than
fax machines and using e-mail would be as appropriate as using a fax machine.

Judge Hagerty MOVED to replace "facsimile" with "electronic" throughout the rule. Judge
Dawson seconded.

A member suggested that there might not be a need for the section on facsimile
transmission warrants. The member said the previous sections were general and seemed
broad enough to include facsimile and e-mail warrants. A member responded the fax section
of the rule seemed to have been a specific response to the creation of fax machines and it
now seemed outmoded.

A member commented that the parts of the rule referring to remote communication involve
something different than communication by fax or e-mail. The member said these parts of
the rule guide procedure for doing warrants over the telephone or radio. The member said
the part of the rule on facsimile transmission sets out a different procedure for when a
document can be transmitted back and forth.

A member asked how an "electronic transmission" could be signed as required by the rule.
A member said methods exist to electronically sign documents. A member said the

-7-

judge can instruct the officer to sign the judge's name on the transmitted copy. A member
said a person's signature is whatever the person wants it to be.

A member said the words "electronic transmission" could substitute for "facsimile duplicate
of the original." Without objection, the change was made to the motion.

A member asked how an officer would get their search warrant under the proposed change
to the rule. A member responded that the officer would prepare and send an e-mail, and then
print it out and sign it. The print out would become the original affidavit. The original
warrant would be the one printed out by the judge and signed by the judge.

Without objection, the motion was modified to strike the word "facsimile" on line 95, rather
than to substitute "electronic." Staff was instructed to modify the explanatory note on lines
202-204 to reflect the revision and to indicate that the revision of the rule was not designed
to substitute e-mailed warrants for warrants by facsimile transmission, but to expand the rule
to include warrants by facsimile transmission and by other means of electronic transmission.

The motion to replace "facsimile" with "electronic" CARRIED unanimously.

A member asked about the rationale for the requirement at lines 69-72 that tapes of a
telephone request for a warrant be transcribed. The member asked why, if no one requests
a transcript, should a transcript be made. A member said that some districts were beginning
to have transcripts made on all types of search warrants because notes and tapes can get lost
and it is easier to have the transcript made right away.

A member suggested that language be added to require a transcript only when a party made
a request. A member said that a transcript can always be made when someone orders one.

Judge Nelson MOVED to delete the language at lines 69-72 mandating a transcript. Judge
Schneider seconded.

A member said it was not a good idea to eliminate the transcript requirement because
records could possibly be lost before the object of the warrant or counsel would be in a
position to ask for a transcript. A member commented that it would often be to the
defendant's advantage if the records were lost­the prosecution has the strongest interest in
referring to the record.

A member commented that the requirement for a transcript only existed when the

-8-

search warrant had been obtained by telephone. The member said records could be lost
regardless of how a warrant was obtained and having a transcript requirement only when a
warrant was obtained by telephone did not make sense.

A member said eliminating the requirement would add another element of uncertainty to
matters in which tapes are used as a record. The member said tapes are unreliable to begin
with and can be lost. A member responded if a court reporter died without transcribing steno
notes, there would be problems extracting an accurate transcript as well. The member said
that making sure an accurate transcript can be made of a proceeding, regardless of the
recording method used, was an administrative issue not an issue for the rules.

A member said that a court could use exactly the same recording procedure it used with a
live witness when taking testimony by telephone, but that the rule as it exists would require
transcription only in the case of the telephone warrant. A member said it would make sense
to have a transcript requirement for all proceedings, but it did not make sense only to have
a transcript requirement for telephone proceedings.

The motion to delete the sentence at lines 69-72 CARRIED 11-3.

The main motion to approve the amendments and add the rule to the Criminal Rules
Package CARRIED unanimously.

Staff explained the proposed amendments to the rule. Mr. Kapsner MOVED to approve
the amendments. Judge Dawson seconded.

A member commented that the legislature had discussed changes to bond statutes,
including
preventing courts from competing with bail bond agents. The member said the legislative
proposals had been defeated.

A member asked whether the approved bail bond legislation was consistent with the rule.
A member responded the bail statutes addressed different issues.

A member asked whether the rule should be amended to reflect the practice in the South
Central Judicial District, where jailed defendants are allowed only one automatic review of
release conditions. A member said that amendment of the rule was not necessary­the
SCJD
will allow additional reviews of release conditions on motion from the jailed defendant.

-9-

A member asked whether it was necessary to amend the rule's provisions regarding use of
alcohol or drugs to be consistent with new legislation. The Committee looked at HB 1290,
which requires courts to order drug/alcohol testing of people arrested for violations of
N.D.C.C. ch. 19-03.1. A member said it was a problem for a court to order a person to
submit to a test when, if the person tests positive, this is a felony.

A member said the statute should stand on its own and the rule should be kept as is. A
member observed the rule had general application and the statute only applied to people
arrested for drug offenses. A member said the Committee should see how the new statute
works as applied before considering whether to modify the rule or supersede the statute.

A member said the statute should be mentioned in the explanatory note. Without objection,
it was decided to mention the new statutes discussed by the Committee in the cross
reference. A member suggested the statutes also be mentioned in the text of the explanatory
note. Without objection, the Committee decided that an additional reference to the statutes
be made in the explanatory note text.

The main motion to approve the amendments and add the rule to the Criminal Rules
Package CARRIED unanimously.

Staff explained the proposed amendments to the rule. Judge Nelson MOVED to approve
the amendments. Judge Foughty seconded.

A member said that adding the new material on preserving a claim of error was
unnecessary. A member said it was internally inconsistent to make exceptions unnecessary
and then to set out a method to preserve claims of error.

A member said the proposed new material represented the actual state of the law and the
Committee might wish to consider eliminating the old "exceptions unnecessary" language.
A member responded that the state has gotten along without having language on preserving
a claim of error in the rules and that it is clear from case law when objections are required.
A member agreed it would not be helpful to put additional burdens on lawyers by expanding
the rule.

The main motion to approve the amendments and add the rule to the Criminal Rules
Package FAILED unanimously.

Judge Schneider MOVED to have updates to the explanatory note included as part of the
Criminal Rules Package. Judge Geiger seconded. Motion CARRIED unanimously.

Staff explained the proposed amendments to the rule. Mr. Kuntz MOVED to approve the
amendments. Judge Geiger seconded.

A member asked why this rule was included in the Rules of Criminal Procedure as it seems
to be a general rule of administration.

A member asked whether language in the rule referring to the keeping of records by
magistrates was up to date. A member responded that municipal courts do not always have
clerks and so municipal judges have to keep the records of these courts.

The main motion to approve the amendments and add the rule to the Criminal Rules
Package CARRIED unanimously.

Staff explained the proposed amendments to the rule. Judge Schneider MOVED to approve
the amendments. Judge Dawson seconded.

A member commented that a proposed rule provision requiring the clerk of court to keep
regular business hours might not work in some smaller courts where the clerks work under
contracts and the courts do not control their hours.

-12-

A member asked whether this rule is in conflict with the fax service and filing rules. A
member responded that courts are always open for filing­the fax rule states when a fax
document received after regular business hours would be considered filed.

A member said the explanatory note indicated that a court is "open" when it has the power
to act. The member asked whether this explanation was consistent with the rule's language
indicating that an "open" court is one that is open for filings. A member responded that
orders (such as restraining orders or warrants) could be issued at any time of day and that
this was consistent with the rule's language and the explanatory note.

The main motion to approve the amendments and add the rule to the Criminal Rules
Package CARRIED unanimously.

Staff explained the proposed amendments to the rules. Judge Schneider MOVED to
approve the amendments. Mr. Sturdevant seconded.

A member commented that language in the Rule 1 explanatory involving the Uniform
Juvenile Court Act was inconsistent with language in Rule 1 itself. A member stated that
work was in process on a separate set of juvenile court rules and this reference may no
longer be needed.

A member suggested that language on Rule 1 line 20 be modified. Without objection, the
word "title" was added to line 20.

Judge Geiger MOVED to strike language on line 56-57 of the Rule 1 explanatory note:
"unless the juvenile is not being proceeded against as a juvenile." Judge Schmalenberger
seconded.

A member stated that if an individual was in the process of being transferred to adult court,
the individual would still be under the juvenile court, but if the juvenile was transferred to
adult court, the Uniform Juvenile Court Act would no longer apply to the individual.

The motion CARRIED unanimously.

The main motion to approve the amendments and add the rules to the Criminal Rules
Package CARRIED unanimously.

Staff explained the proposed amendments to the form. Judge Hagerty MOVED to approve
the amendments. Judge Simonson seconded.

-14-

A member commented there is a new requirement that, as a condition of probation, courts
make defendants pay for DNA testing if they are convicted of a felony. The member asked
whether this requirement was among the changes to the form. Examination of the form
showed this requirement had been added.

Judge Simonson MOVED to delete the words "Appendix A" on line 3 and replace with the
word "Certificate." Mr. Kuntz seconded.

A member said N.D.C.C.§ 12.1-32-07 (5) uses the word "certificate." Several
members
responded that most agencies, including the courts, call the document Appendix A.

The motion FAILED 4-11.

Mr. Mack MOVED to add the word "tribal" to line 12. Ms. Moore seconded.

A member commented that some courts are already including the word "tribal" in probation
forms they generate.

The motion CARRIED unanimously.

A member asked whether the word "foreign" should also be added to account for people
who violate laws in Canada or Mexico.

Judge Nelson MOVED to add text at line 27: "Excessive use of alcohol is presumed if you
have an alcohol concentration of ____ percent or more." Ms. Moore seconded.

A member said using a blank in the text allowed flexibility in setting the condition. A
member said leaving the blank left too much discretion. A member said it should be up to
the judge setting the probation conditions to decide what amounts to excessive consumption.

The motion CARRIED 14-1.

Judge Geiger MOVED to strike lines 77-96 and to replace with: "15. You shall pay the
following monetary obligations to the Clerk of Court in the total amount of $____. Said
obligations shall be paid in equal monthly installments beginning one month after release
from incarceration or being placed on probation. In no event shall the equal monthly
installments be less than $___ per month. The total amount of the obligation shall be paid
prior to the end of probation: a. Fines in the amount of $___; b. Court appointed attorney
fees

-15-

in the amount of $___; c. Court administration fees in the amount of $___; d. Restitution in
the amount of $___; e. Victim assistance fees in the amount of $___; Other court costs in the
amount of $___." Judge Geiger said each cost category would have a check box in front so
the court could designate which were applicable. Judge Simonson seconded.

A member asked why the probationer should be allowed to pay on a monthly schedule. A
member said that designating a payment schedule is usually done by the clerks due to
problems with inserting amounts in UCIS documents. A member said that another
alternative was to allow the probation officer to set up a schedule and monitor payments.
The member said the probation officer had more knowledge of the person and was in a better
position to set up and monitor payments.

A member suggested eliminating the motion language referring to payment schedule and
conditions. Without objection, the proposed change was made as follows: "15. You shall
pay the following monetary obligations to the Clerk of Court in the total amount of $____.
The total amount of the obligation shall be paid prior to the end of probation: a. Fines in the
amount of $___; b. Court appointed attorney fees in the amount of $___; c. Court
administration fees in the amount of $___; d. Restitution in the amount of $___; e. Victim
assistance fees in the amount of $ ___; Other court costs in the amount of $___."

A member asked what happens when a probationer fails to pay the total obligation prior to
the end of their probation. Members responded that probation can be responded for up to
five years.

A member asked whether restitution was being paid through the state's attorneys office in
all counties. A member responded that in smaller counties it is still paid to the clerks and
then transferred to the state's attorney's office. A member said this raised an issue about
restitution fees and who should get them.

A member asked why the amounts should be listed in Appendix A when they are already
listed in the judgment. The member said it was repetitive to set out everything again. A
member responded the amounts were in the standard form now and that some courts had
been putting the amounts in Appendix A for some time. A member said that the forms were
not consistent across the state.

A member said that judgments do not always enumerate every obligation and it is important
to have it in the form. A member said Appendix A sets out the terms of probation and if an
item, such as the amount of an obligation, is not listed in Appendix A, a probationer's failure
to fulfill the obligation cannot be considered a violation of probation because of the need to
err on the side of the defendant.

-16-

A member suggested the last item on the list proposed by Judge Geiger be "other." The
member said there were other mandatory fees that sometimes apply that may need to be
assessed.

Without objection, "and facility improvement fees" was added to "c" of Judge Geiger's list
and the "f" item was changed to "Other in the amount of $___."

The motion CARRIED 14-1.

Judge Nelson MOVED to amend line 109 to replace "25" with a blank. Judge Hagerty
seconded.

A member said there needed to be flexibility in the distance that the probationer was
allowed to be from the victim. A member said 100 yards was a distance often used.

The motion CARRIED 14-1.

A member suggested that the condition on line 73 requiring probationers to comply with
treatment recommendations was illegal based on the Supreme Court's rulings. A member
responded that the line 73 language was still in the DUI statute.

Judge Nelson MOVED to strike the words "and comply with all treatment
recommendations" from lines 72-73. Mr. Kapsner seconded.

A member said that by signing off on Appendix A, a probationer voluntarily agrees to
comply with the terms listed in the document, including the one on treatment provisions. A
member commented that the provision could be left in because, if a probationer failed to
comply and faced a revocation hearing as a result, the probationer would have an opportunity
to explain his actions and reasoning. The member said taking the provision out entirely
would create problems because there would be no recourse if probationers do not comply
with treatment recommendations.

A member said one problem with the provision was that it represented a delegation of
"sentencing" responsibility to people outside the judicial system­the social workers who
would be making treatment recommendations for the probationer. The member said this
should not be done absent a provision allowing the probationer to challenge the
recommendations in court.

A member said the state of the law is that the court cannot delegate the duty to prescribe
treatment, although a court could order an evaluation and then order treatment

-17-

based on the evaluation or professional recommendations.

Without objection, the motion was changed to cancel the striking of language and instead
adding the following language at the end of line 73: "subject to your right to a hearing before
the court if you disagree with any treatment recommendations."

The motion CARRIED unanimously.

A member asked about payments to be made by probationers. The member asked whether
the payments were prorated or paid out by priority. Members responded that the payments
were made by category according to a list of set priorities, i.e., indigent defense first, then
restitution, then fines and fees.

A member asked what was the difference between the addiction organizations listed at lines
59-61. The consensus was that this was a partial list of alternative organizations.

A member questioned the removal of the condition to support dependents.

Judge Foughty MOVED to restore the condition requiring support of dependents on line
58. Mr. Mack seconded. The motion CARRIED unanimously.

A member suggested the forms of assessment listed on line 164 were junk science. A
member stated that the requirement to participate in the assessments as a means to assist in
"treatment, planning and case monitoring" could be unconstitutional. A member suggested
language pointing out the probationer's right to a hearing could be added.

A member asked where the new sex offender probation standards came from. Staff
indicated they had been proposed by the Department of Corrections. A member said Parole
and Probation had put together a working group focused on sex offenders and this group
may have developed the new language.

Without objection, an extraneous "that" was removed from the end of line 55.

A member suggested a blank "other" item be added after line 119 as a new item 27.
Without objection, the suggestion was adopted.

A member stated the requirement at line 167-168 that a probationer be financially
responsible for treatment ordered by a parole/probation officer was improper. A member
commented that if a probationer failed to pay for treatment ordered by a parole/probationer
officer, they would likely get a hearing before the court on a show cause order.

A member reminded the Committee that the proposed probation conditions listed on the
form were not all mandatory, but conditions that can be imposed when the court considers
it appropriate. The member said the conditions were listed in the Century Code.

A member said conditions 1 and 2 were mandatory. The member said condition 2, which
makes it a violation of probation to possess a firearm, should be made a non-mandatory
condition. The member said it made no sense for bad check writers or people on probation
for alcohol offenses to automatically be banned from hunting. The member said the court
should be given discretion to make condition 2 a condition of probation based on the offense
charged.

Mr. Mack MOVED to put a parentheses in front of condition 2 to indicate the condition
was optional. Judge Nelson seconded.

A member said even though the statute required that the condition against possessing a
firearm be imposed in all probations, it was not imposed in all probations. A member replied
that it was a violation of the law for a probationer to possess a firearm, so possession would
be a violation of probation under condition regardless of what the Committee decided on
condition 2.

A member said a petition for revocation based on a violation of the law (condition 1) was
not generally brought unless an offense was charged out, which was not likely to happen if
a probationer merely possessed a weapon while hunting. A member read the statute, which
explicitly stated that the court "shall" make non-possession of firearms a condition of
probation. Committee members agreed the requirement was black and white, but they also
agreed that courts did not always follow the requirement when setting out probation
conditions.

A member said the provision allows probation and parole officials to require a probationer
to submit to an assessment program, which is an improper delegation of court authority. A
member said that parole and probation cannot order treatment, but may order assessment or
evaluation, so the provision is legitimate.

-19-

A member said that, typically, the court would order the types of assessments listed in
condition 39 and parole and probation officials would use those assessments to recommend
a course of treatment. The member said the statutory scheme in sex offender cases requires
an evaluation before the court decides what should happen to an offender.

A member said the problems with condition 32 could be resolved by inserting language
requiring court approval before assessment or treatment. A member said that provision
reflected public concern that sex offenders be monitored by parole and probations officials
and treated.

Judge Foughty MOVED to substitute language, deleting language on lines 163-165 but
retaining language on lines 162-163 and adding the words "as ordered by the court" after
"physiological assessment" on line 163. Mr. Sturdevant seconded. Without objection, the
motion was substituted.

Mr. Kuntz MOVED to substitute "approved" for "ordered" in the substituted motion. Mr.
Kapsner seconded.

A member said the intent of the amendment was to allow the court to sign off on tests
requested by parole and probation officials. The member said "approved" was more
appropriate language because the test requests may come after the court enters its probation
order.

The motion to substitute CARRIED unanimously.

The motion to amend lines 162-165 CARRIED unanimously.

A member asked whether the prohibition from Internet use on lines 150-153 was extensive
enough. A member responded that it seemed too wide since it went beyond access to sex
related materials. A member reminded the Committee that the items listed were options and
courts were not required to impose all of the restrictions listed.

The main motion to approve the amendments and add the form to the Criminal Rules
Package CARRIED unanimously.

Staff explained that the proposed amendments to the Rules of Criminal Procedure had been
compiled for the Committee's final review.

-20-

A member pointed out that the title of Rule 26, "Evidence," was no longer appropriate
given the Committee's substantial amendment to the rule.

Mr. Mack MOVED to change the title of the rule to "Testimony." Mr. Plambeck seconded.

A member suggested that "Testimonial Evidence" might be a better title. A member said
the Committee could look to the title of the parallel federal rule "Taking Testimony."
Without objection, the motion was changed to "Taking Testimony."

The motion to change the title CARRIED unanimously.

A member suggested that the term in line 5 of Rule 26, "these rules," was too narrow
because the Rules of Evidence may also be implicated when testimony is taken.

The Committee moved on to the rest of the Criminal Rules Package. A member said that
the language of Rule 43 regarding a defendant's voluntary absence remained confusing. A
member said that the continued presence part of the rule allowed the court to proceed if a
defendant was voluntarily absent. A member replied that the part of the rule specifically
allowing a misdemeanor defendant to enter a plea while not present did not seem consistent
with the continued presence part of the rule, which allows the matter to go forward when a
defendant is voluntarily absent. The member said the continued presence part of the rule
arguably allows any defendant, including a felony defendant, to enter a plea while
voluntarily absent.

A member made a comment on the interactive television references in Rules 5, 10 and 43.
The member said that now that the Supreme Court has implemented an administrative rule
on the use of interactive television, the Committee should consider in the future whether to
remove the interactive television references from the Criminal Rules.

A member said there might be a problem with Administrative Rule 52, the new interactive
television rule, because it appears to bar guilty plea proceedings by ITV in felony cases. The
member said under Rule 43, presence by ITV is presence for the purpose of a guilty plea
proceeding. The member said the Rule 43 formulation was preferable to the approach in
N.D. Sup. Ct. Admin. R. 52. The member said Rule 43 should not be changed until the
Committee had addressed Admin. Rule 52.

-21-

The Committee decided to further consider the Criminal Rules Package on Friday.

The meeting recessed at approximately 4:30 p.m., on April 28, 2005.

April 29, 2005 - Friday

The meeting was called to order at approximately 8:30 a.m., by Justice Dale Sandstrom,
Chair. The Committee briefly discussed the date and location of the September meeting and
potential agenda items for September.

The Chair explained that the Supreme Court had adopted Admin. Rule 52 to pull together
the essential parts of the ITV pilot project rules. Staff explained the Supreme Court had
requested the Committee to review and make recommendations on newly approved Rule 52.

Judge Schneider MOVED that the Committee make a report to the Supreme Court on the
rule. Mr. Mack seconded.

Judge Nelson MOVED to delete lines 29-30 and delete "convicted of a misdemeanor" on
line 31. Mr. Kuntz seconded.

A member commented that interactive television had been used to sentence people in
distant locations, such as out-of-state penitentiaries, on felony charges. The member said
there was a good option to have, especially when all parties agree that it should be done.
The member said Rule 43 says presence by interactive television is presence and Admin.
Rule 52 should be made consistent with Rule 43.

A member said the effect of the proposed amendment was that all defendants could

-22-

be sentenced by ITV with the consent of the defendant and the prosecutor.

The motion CARRIED 15-1.

A member asked whether the purpose statement was necessary. Staff explained purpose
statements were generally included with administrative rules.

The main motion to make a report on the new rule, as amended, CARRIED unanimously.

Staff explained the Supreme Court had requested the Committee to review and make
recommendations on proposed amendments to Rule 41. Staff outlined the process followed
during the development of the proposed amendments by the Court Technology Committee
and discussed the new material in the rule.

Judge Foughty MOVED that the Committee make a report. Judge Geiger seconded.

Judge Geiger MOVED to transfer the material at lines 172-174 to page 410 after line 26
to be a new paragraph 3. Mr. Kapsner seconded.

The Chair confirmed that the intent of the motion was to classify judicial and court staff
work material as not being a court record, as opposed to being a court record exempt from
disclosure.

A member said the proposed change would make it clear that the materials in question were
never accessible. The member said if they were made protected court records, there would
be an implied ability to seek their disclosure.

A member replied that the proposed change did not make it clear that there would never be
access. A member pointed out the types of records classified as non-court records were
records that did not belong to the courts. A member said that the records would still be
government records, accessible under the open records law rather than a court rule.

A member said some additional amendments might be necessary to make certain that the
records in question were not accessible. A member said that the open records law had
specific exclusions, but unless a record was specifically excluded by legislation, that record
was presumed accessible. The member said if the Committee decides that court work

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material is not a court record, and it wanted to keep this material from being accessible, an
exclusion from the open records law would have to be obtained.

Without objection, Judge Geiger's motion was withdrawn.

A member said there were things in the proposed rule that were inconsistent with other
rules. The member said the rule, for example, put the obligation to exclude social security
numbers from court records on court staff while N.D.R.Ct. 3.1 put this obligation on
attorneys. Staff explained that the existing Rule 41 also put the exclusion duty on court staff.

A member said the duties in Rule 3.1 and Rule 41 were not inconsistent, but instead put
different duties on different people at different times. The member said this was a good
thing because it helped protect personal information. A member said redundancy in this case
is appropriate.

A member said the last sentence of Rule 3.1 says "court personnel will not review
documents." The member said this was inconsistent with court staff's Rule 41 obligation
and the Committee may wish to consider changing this language in the future. The member
said court staff should not be excluded from responsibility.

A member said the language in Rule 3.1 was there in part because of liability concerns, to
fend off lawsuits in identity theft cases. A member said that the need to inspect all
documents would overwhelm the clerks, especially if this extended to all documents in court
files. The member said the Rule 3.1 exception was necessary to make clear that it was not
the clerks' job to read all the old documents on file.

A member pointed out that Rule 41 was not a screening device to keep documents out of
the courthouse but instead a mechanism to regulate what goes out. A member said that a
larger issue was, once records are in electronic form, people will not have to ask the clerk
to get them. The member said that the bankruptcy court has a giant electronic file cabinet
now that lawyers and parties can access without going to a courthouse or going through a
clerk.

A member said that, under the proposed rule, if an item is in electronic form, it is
presumptively subject to remote access. The member said there is a list of items in the rule
of records already in electronic form, and under the proposal, these items would be subject
to remote electronic access. A member explained that currently docket sheets are available
in electronic form, as are calendars and UCIS judgments, orders and decrees.

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A member also said things like social security numbers would be easier to pull out of
records once the records were in electronic form because these numbers could be found in
automatic electronic searches. A member said that 99% of the problems related to keeping
personal information in court records protected could be solved by making divorce and
domestic relations files restricted as is the case in some other states.

A member said there is a provision under the proposed rule to prohibit access to records on
a case-by-case basis. There is also a provision to open access to a restricted record. A
member said the Committee should look at the issue of making divorce and domestic files
restricted access records. The member said the need to make a motion to get the records
closed was one more thing for attorneys to remember and a burden to counsel and the
parties.

A member said issues like these are reasons why the Committee should not rush through
the rule but should wait to see what issues bubble up as more people become familiar with
the proposed changes.

A member asked whether there was tension between the language on lines 238-239
allowing parties and attorneys to examine the court file of an action and the language on
work material at lines 172-174. The members asked if the language at lines 238-239 gave
lawyers and parties the right to see judicial work material in their action. The member asked
whether judges would have to do orders in each case restricting access to judicial work
material.

A member said notes and work material would not be in the court file so parties and
lawyers would not be able to access them. A member said that in some counties and
districts, judges' notes were kept in the court file. A member said this typically would not
happen unless the judge wanted the notes in the file. The consensus was that the Committee
wanted the interplay between the party access language and the work material language
analyzed further.

A member said the language at lines 163-165 was confusing. A member responded that
domestic violence protection order files were restricted, but the actual protection orders were
accessible to the public. A member suggested the language in the paragraph could be put
in a different order and this would clarify the meaning.

Mr. Mack MOVED to move the "except for orders of the court" clause at line 163 to the
end of the paragraph. Ms. Moore seconded. Motion CARRIED unanimously.

A member asked that "order" be deleted from line 163 and 164 so that the language

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would read "domestic violence protection files" and "disorderly conduct restraining files."
Without objection, the "order" in line 163 was removed.

The Committee addressed the "order" in line 164. Members said this should not be
removed because it was necessary to define the type of file.

Mr. Kapsner MOVED to restore "order" in line 163. Judge Simonson seconded. The
motion CARRIED unanimously.

The Chair observed that there appeared to be an issue on how to handle the judicial work
material detailed at lines 172-175 on page 417. The Chair noted there was a concern that
officials, parties and attorneys could access this material under the language at lines 236-239
on page 420 unless the court ordered these records restricted.

The Chair also observed the issue of whether divorce and domestic files should be sealed
also needed to be addressed. A member said that domestic violence files had been restricted
so perhaps other divorce and domestic files could be restricted as well. A member said
divorce and domestic judgments would still need to be accessible to the public.

A member asked whether the interplay between the open records law and the Court's power
to restrict access to court records should be studied. Staff said that an older Supreme Court
opinion and a recent Attorney General opinion had concluded the court records were outside
the scope of the open records law.

The Committee consensus was that the proposal as a whole should be allowed to percolate
for a while.

Judge Schmalenberger MOVED to postpone consideration of the proposal until the
September meeting. Judge Geiger seconded. Motion CARRIED unanimously.